2016Gahap2426 Collections

1. A;

2. B

C Housing Redevelopment Project Association

July 20, 2017

September 14, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff A 541,58,472 and interest thereon 5% per annum from October 18, 2012 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment. The defendant shall pay to the plaintiff B 348,712,688 and interest calculated at the rate of 5% per annum from October 17, 2012 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

(a) Conclusion of loan contracts and specialized management services contracts;

1) On March 21, 2007, the C Housing Redevelopment Improvement Project Promotion Committee (hereinafter referred to as the "Promotion Committee"), the Defendant’s telegraph, entered into a loan agreement with D Co., Ltd. (hereinafter referred to as “D”), and entered into a maintenance project specialized management service contract (hereinafter referred to as “the instant first service contract”) on April 7, 2007. The main contents of each of the above contracts are as follows.

On behalf of the Loan Contract Promotion Committee, the Chairperson F (hereinafter referred to as "A") and the Representative Director G (hereinafter referred to as "B") shall enter into a loan contract for operating expenses (loan) as follows in order to determine necessary matters concerning the operating expenses required for the promotion of the Housing Redevelopment Improvement Project (hereinafter referred to as the "Main Project") (general terms of contract) and Article 2 (Status between Parties) (1) shall entrust Eul with the management business of the rearrangement project under each subparagraph of Article 69 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents, and Eul shall faithfully entrust Eul with the management business of the rearrangement project under each subparagraph of Article 69 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Eul shall operate the funds borrowed from a rearrangement project entity for operating expenses and the implementation of the project under Article 32 (2) of the Rules of the Promotion Committee.

위원회에 대여금으로 전환한다(운영비 4,303,488원, 임차보증금 10,000,000원).2. 추진위원회 예산(안) 중 주민총회에서 의결된 칠백일십사만 원(₩7,140,000)을 매월 말일을 기준으로 하여 을은 갑에게 대여하기로 하며 대여 날짜는 상호 협의하여 변경할 수 있다.4. 본 계약 이후 을은 도시정비법 69조에 의한 업무를 수행한다.제6조 (계약의 해제 및 해지)① 갑은 다음 각 호의 사유가 발생하여 을이 계약을 이행할 수 없다고 판명된 경우에는 15일의 계약이행 기간을 정하여 서면으로 통보한 후 동 기간 내에 이행되지 아니한 경우 본계약의 일부 또는 전부를 해제 또는 해지할 수 있다.1. 을이 제3조에 대하여 책임있는 사유로 업무를 이행할 수 없다고 갑이 판단되는 경우2. 을이 계약일반조건을 위반함으로써 계약목적을 달성할 수 없다고 객관적으로 판단될 경우이 사건 제1차 용역계약사 업 명 : C 주택재개발정비사업위 치 : 인천광역시 남구 H 일대시행면적 : 대지면적 52,700m2(15,941평)연면적의 합계 : 사업시행인가 기준으로 추후 확정계약단가 : 건축연면적 평당 31,000원 (부가세별도)계약금액 : 건축연면적에 계약단가 31,000원/평당(부가세별도)을 곱한 금액 (1차 정비구역지정시 확정된 건축연면적으로 하여 적용하고 사업시행인가시 확정된 건축연면적을 최종 적용한다)

2) After the resolution of re-election of a service company was made by the promotion committee, but D had been re-selectedd on June 26, 2010, the promotion committee and D entered into the same management services contract for the rearrangement project (hereinafter referred to as "the second services contract of this case") as mentioned below, including the first and second services contract of this case. The loans and service costs under the loan contract of this case and the first services contract of this case were part of the second services contract and succeeded to the promotion committee and D without settlement, according to the agreement of January 22, 2010.

The second service contract of this case: The value of housing redevelopment project: 50,017 square meters (15,130.07 square meters) of the site area: The total fixed contract price: 9,380 won (31,000 won per 20 square meters): the contract price per 30,000 square meters (31,000 won per 31,00 square meters): the contract price per 9,380 square meters of the total floor area (31,000 won per 31,00 square meters of the contract unit area) and the final total floor area at the time of approval for the implementation of the project shall be applied to 30,000,000,000,0000 won (the final building area at the time of approval for the implementation of the project for the improvement project for 4,000,0000,0000,000,0000,000,000,0000).

(b) 20%: 10% at the time of authorization for the establishment of the district: 10%: 20% at the time of authorization for the implementation of the project: 20%; 20% at the time of authorization for the implementation of the project; 10% at the time of dissolution and liquidation of the partnership: 10%) A shall deposit in cash the amount borrowed from B as operating expenses of the promotion committee pursuant to Article 7(4) within 30 days after the date of the selection of the contractor. Article 7(4)) B shall lend the amount determined by the resident general meeting at the expense of the promotion committee of A to the promotion committee, and the lending period shall be in accordance with the operating period: Provided, That at the request of A, the lending period may be extended until the time of the selection of the contractor.Article 9(1)1) If it is objectively determined that A is unable to perform the contract due to the occurrence of any of the following causes, after giving written notice within the 30-day contract execution period, it may be canceled or terminated in whole.

3) On May 13, 2013, a promotion committee obtained authorization for the establishment of an association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), and became the Defendant partnership, and all rights and obligations of the promotion committee related to the said contract were succeeded to the Defendant.

B. Defendant’s notice of termination of contract

1) On March 7, 2011, the Defendant sent to D the instant loan agreement and each service agreement a certificate to urge the performance of the obligation to lend operating expenses under each service agreement. On July 18, 201 and January 12, 2012, the Defendant sent a certificate to the effect that the instant secondary service agreement automatically terminates if the obligation to lend operating expenses is not fulfilled within 30 days.

2) Nevertheless, the Defendant, on October 15, 2012, notified that the instant secondary service contract was terminated due to D’s failure to perform its obligations on October 15, 2012.

C. The plaintiffs' seizure and collection order and assignment of claims

1) On the basis of the authentic copy of a promissory note with executory power of 680, 2010, the Plaintiff A received the seizure and collection order of KRW 680,000,000 among service charges and loans that D will receive from the Defendant, as the Incheon District Court 2012TTT No. 20163, May 11, 2012, and the said seizure and collection order was served on the Defendant on May 16, 2012.

2) On the basis of the executory payment order in the repayment order in the repayment order in the repayment order in the repayment order in the repayment order in the repayment order in the repayment order in the repayment order of D, the Plaintiff B received the seizure and collection order in the amount of KRW 715,397,260 (hereinafter “the second collection order in this case”) from the Defendant from the Incheon District Court on February 13, 2015, among the service charges and loans that D will receive from the Defendant. The above seizure and collection order was served to the Defendant on February 24, 2015.

3) Meanwhile, D transferred KRW 890,298,723 on December 10, 2012, 2012, before the second collection order of the instant secondary collection order, to Plaintiff B and I, respectively, at 50% (hereinafter “transfer of the instant claim”), and notified the Defendant of the transfer of the claim on December 12, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 7, 9, Eul evidence Nos. 1 through 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) D performed services and lent money to the Defendant by October 17, 2012 in accordance with each of the instant service contracts and the instant loan contracts. Therefore, as long as the instant loan contract and the secondary service contracts are terminated, D has the right to return the loan (hereinafter referred to as the “right to return the loan of this case”) to the Defendant, 348,712,688 won (hereinafter referred to as the “right to return the loan of this case”).

2) The Plaintiffs received the order of seizure and collection regarding D’s above claims, and thus, they may claim the Defendant to pay the collection amount. The Plaintiff sought as part of the collection amount the payment of the instant service charges claim amounting to KRW 541,58,472 and the damages for delay thereof. The Plaintiff B seeks to pay the instant loan claims amounting to KRW 348,712,688 and the damages for delay thereof.

B. Defendant’s assertion

1) The second collection order of this case is null and void after the assignment of claims with the fixed date with respect to the seized claims. Therefore, the claim based on the above collection order is without merit.

2) With respect to the existence of seized claims, since each of the instant service contracts, which is a delegation contract, was terminated due to reasons attributable to D, a mandatary, pursuant to Article 686(3) of the Civil Act, D is prohibited from claiming remuneration for the performance of service duties pursuant to Article 686(3) of the Civil Act. As long as the instant service claims are not recognized, a collection order with the claims subject

3) In addition, the Defendant only terminated the instant secondary service contract, and did not terminate the instant loan contract. Therefore, the Defendant is obligated to return the loan in accordance with the terms and conditions of the instant loan contract. However, given that the instant loan contract did not yet provide loans from the contractor as stipulated under the terms and conditions at the time when the loan was returned, the Defendant is not obligated to return the loan, and thus, the instant loan repayment claim is not recognized. Accordingly, the collection order, which is the claim subject to seizure, is null and void.

4) Furthermore, with D’s nonperformance of obligation, the Defendant suffered damages, such as entering into a contract with a new company. Therefore, if D’s claim against the Defendant is recognized, the above Defendant’s damage claim against D should be offset against an equal amount.

3. Determination as to the cause of action

A. Determination as to the validity of the second collection order of this case

1) An obligor under an order of seizure against a claim is prohibited from the disposal and receipt of the claim, but such prohibition is not absolute, but is relatively null and void in the relationship with the execution creditor within the extent necessary to achieve the purpose of execution due to the effect of prohibition of disposal by the seizure. Thus, in cases where a claim subject to seizure is transferred to a third party after the seizure, the assignment of claim shall be effective in relation to other creditors, etc. of the execution obligor. Since the highest order between the obligor and the assignee of the seizure order and the notification of assignment of claim with a fixed date and the third obligor of the seizure order shall be determined after the arrival of the third obligor, the attachment against the same claim shall be null and void (see, e.g., Supreme Court Decision 9Da72644, Apr. 21, 200).

2) We examine the instant case in light of the above legal principles. The assignment of the instant claim was conducted after the first collection order of the instant case. However, according to the above legal principles, even if such circumstances exist, the assignment of the instant claim becomes effective in relation to the relationship with other creditors except the Plaintiff A, who is the collection authority of the first collection order of the instant case. Thus, unlike the Plaintiffs’ assertion, the second collection order of the instant case becomes null and void since it was issued after the notice of the assignment of claim with the fixed date. Thus, the claim for the payment of the collection amount pursuant to the second collection order of the instant case cannot be made. Accordingly, the Plaintiff B’s claim for the payment of the collection amount against the Defendant is groundless

B. Determination as to the recognition of the instant claim of service costs among the seized claims

1) In light of the content of each service contract of this case and Article 71 of the Urban Improvement Act stipulating that, in principle, the provisions concerning delegation under the Civil Act shall apply mutatis mutandis to the relationship between the person who entrusted a management entity specialized in improvement projects and the person who requested a management entity specialized in improvement projects, in principle, to a management entity specialized in improvement projects. Meanwhile, in the event that the delegation contract is terminated, the pertinent service contract of this case is deemed a delegation contract. Meanwhile, inasmuch as the mandatory can claim remuneration according to the rate of affairs handled only when the delegation contract is terminated due to a cause not attributable to himself/herself (see Article 686(3) of the Civil Act), D is ultimately entitled to claim remuneration for performance

2) According to the facts acknowledged earlier and the overall purport of the evidence and arguments, it is recognized that the Defendant notified the termination of the instant secondary service contract by failing to perform the obligation to pay a loan to the Defendant. The evidence submitted by the Plaintiffs alone is insufficient to recognize that the instant secondary service contract was terminated due to a cause for which the Plaintiff was not responsible D, and there is no other evidence to acknowledge that the instant secondary service contract was terminated.

3) If so, D cannot claim remuneration from the Defendant under each of the instant services contracts. Furthermore, even if each of the instant services contracts was terminated due to a cause not attributable to D, the evidence submitted by the Plaintiffs alone is insufficient to recognize that D performed the service duty under the service contract, and there is no other evidence to recognize it. Thus, the seizure and collection order based on the service charges of this case is null and void. Thus, the claim for collection based on this cannot be accepted.

C. Sub-committee

1) Ultimately, the first collection order of this case is null and void in the part where the service costs of this case are claims subject to seizure, and the second collection order of this case is null and void in its entirety after the assignment of claims with the fixed date.

2) Therefore, under the premise that the part of the claim against the service costs of this case, among the first collection order of this case, is valid, the claim of Plaintiff A, which claims part of the claim against the seized part, is without merit, and there is no reason for Plaintiff B’s claim based on the second collection order of this case, which is null and void.

4. Conclusion

Therefore, the plaintiffs' claims against the defendant are all dismissed. It is so decided as per Disposition by the assent of all.

The presiding judge shall replace the judge.

판사 김샛별

Judges Southern도요

1) X 40% of total floor area of construction (43,676.4897 square meters x 31,000 won x 20% of total floor area of construction) 1,353,971,180 won (based on the content of each service contract of this case, which provides that remuneration shall be paid at 20% of total floor area of construction x 31,000 won at

2) Operating expenses to be converted into loans + KRW 14,308,488 + Operating expenses of KRW 286,260,000 regularly paid monthly + KRW 36,04,000 on March 14, 209 + KRW 12,105,200 on May 4, 2009 at the general meeting.